Petitioner
Mark Robertson has filed an amended application for a writ of
habeas corpus under 28 U.S.C. § 2254 (“Amended
Petition”) (docket entry 47), asserting claims that his
trial counsel provided ineffective assistance and that his
due process rights were violated by the presentation of false
or inaccurate evidence in the punishment stage of his trial.
The application is DENIED.

I

In
1991, Robertson was convicted of capital murder and sentenced
to death for the 1989 robbery and murder of Edna Brau in
Dallas County, Texas. See State v. Robertson, No.
F89-85961-NL (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Feb.
11, 1991). Clerk's Record (“CR”) (docket
entry 27) at 321-25. His conviction and sentence were
affirmed on direct appeal. See Robertson v. State,
871 S.W.2d 701 (Tex. Crim. App. 1993), cert. denied,
513 U.S. 853 (1994). The state court then set an execution
date, but withdrew it to allow Robertson to file his
application for a post-conviction writ of habeas corpus in
state court, and then for the state court to give full
consideration to it. The state district court sitting in
review of the habeas petition (“State Habeas
Court”) recommended that post-conviction habeas relief
be denied. See Ex parte Robertson, No.
W89-85961-NL-(A) (Crim. Dist. Ct. No. 5, Dallas County, Tex.
June 26, 1998). These findings and recommendation were
adopted by the Texas Court of Criminal Appeals
(“CCA”). See Ex parte Robertson, Writ
No. 30, 077-01 (Tex. Crim. App. Nov. 18, 1998). Robertson
then filed an application for habeas relief in federal court,
which was also denied. See Robertson v. Johnson,
3:98-CV-2768-G (N.D. Tex. May 15, 2000), COA denied sub
nom. Robertson v. Johnson, 234 F.3d 890 (5th Cir. 2000),
vacated and remanded, 533 U.S. 901 (2001), en
banc denial of relief sub nom. Robertson v. Cockrell,
325 F.3d 243 (5th Cir. 2003). Following the conclusion of
Robertson's original state and federal post-conviction
review, the state court again set his execution for August
20, 2003. On August 12, 2003, Robertson filed a subsequent
application for writ of habeas corpus and motion to stay his
execution in the CCA, which authorized the subsequent
application and granted the stay of execution. See Ex
parte Robertson, No. 30, 077-02 (Tex. Crim. App. Aug.
19, 2003) (docket entry 27-36 at 275-276). Following the
remand, the CCA adopted the trial court's findings that
Robertson had presented mitigating evidence for which, under
Penry v. Lynaugh, 492 U.S. 302 (1989), there had to
be an adequate means for the jury to consider beyond the
limits of the special issues, that Robertson had requested
such a means, and that, when presented with the nullification
instruction, Robertson objected that it still did not give
the jury a proper means to consider his mitigating evidence.
See Ex parte Robertson, No. AP-74, 720, 2008 WL
748373 (Tex. Crim. App. Mar. 12, 2008). The CCA granted
relief, reversed the sentence, and remanded for a new trial
on punishment. See id.

On
retrial with the new special issues, the jury again answered
them in a manner that required imposition of a death
sentence. See State Clerk's Record of Second
Punishment Trial (“SCR”) (docket entry 27-42) at
197-99, 210-11. The CCA affirmed the new death sentence. See
Robertson v. State, No. AP-71, 224, 2011 WL 1161381
(Tex. Crim. App. Mar. 9, 2011), cert. denied, 565
U.S. 1095 (2011). On state post-conviction habeas review,
Robertson presented one claim to the state district court on
habeas review: that trial counsel provided ineffective
assistance for failing to investigate and present mitigating
evidence. The state habeas court conducted an evidentiary
hearing and entered findings, conclusions and a
recommendation to deny relief. See State Clerk's
Habeas Record following Second Punishment Trial
(“SHR”) (docket entry 28-27) at 1126-99. The CCA
adopted the findings “except for paragraphs 1, 2, and
3, which indicate that the allegation is procedurally barred,
” and denied relief. Ex parte Robertson, No.
WR-30, 077-03, 2013 WL 135667, at *1 (Tex. Crim. App. Jan. 9,
2013).

II

At the
retrial, the prosecution entered into evidence multiple
confessions that Robertson gave that he had shot his friend,
Sean Hill, while they were fishing, then murdered Hill's
grandmother, Edna Brau, stole her purse and jewelry and
Hill's drugs and left in Brau's car. The CCA quoted
from Robertson's written confession.

On Saturday night around 9 PM I decided to walk over to
Sean's house on Hathaway where he lived with his
grandmother. When I got there, Sean was in his room watching
T.V. We sat around watched TV and did some pot and crank. We
then decided to go fishing out in the backyard. We were using
one stick with a string and a hook. We would trade off, I
think we caught some seven catfishes. While we were fishing,
I think we were kneeling. I pulled my gun out of my pants and
shot Sean once in the head. After I shot him, Sean fell in
the water. I then ran in the house through Sean's bedroom
and into the bathroom where I splashed some water over my
face. I then walked into the den where Mrs. Hill, Sean's
grandmother, was watching TV and I shot her once. I unplugged
the TV because it was playing and so was the radio in the
bedroom.

I looked through her bedroom drawers and found her purse on
the make-up counter. I saw some costume jewelry but left it
alone. I did take a wristwatch which I later threw away in a
garbage can but I don't remember where. I then ran into
Sean's room and took his crank which was left on the bed.
I then drove off in Mrs. Hill's car. I went on home and
then went to Showtime on Greenville and Lover's where I
wiped it all down and left it there. I then walked back home.
Next day while listening to the evening news I heard about
their bodies being found. I couldn't sleep for the next
couple of days so I figured that I would just leave. I walked
back to the parking lot at Showtime where I got in the car
and decided to drive to Las Vegas where my parents used to
bring me. I had left the car in the parking lot. I threw the
purse away in a dumpster at the Village Apts. I think that I
left on Tuesday sometime around 4 PM. I drove all the way to
Albuquerque, N. Mexico where I spent the night and the
following day I drove to Vegas. I was staying at the SuLinda
Motel in Vegas. I met Nikki two or three days later at the
Circus-Circus. I used my roommate's money to get to
Vegas. He had some $700.00 in cash in his room. I think that
Mrs. Hill's purse had some $37.00 in cash which I took.
These past few days I didn't know what to do and when I
got arrested I felt relieved for the most part because I
didn't have to run anymore.

Robertson, 871 S.W.2d at 704-05. The state court
findings regarding these confessions are entitled to
deference under 28 U.S.C. 2254(e).

III

Before
this court, Robertson makes two claims for federal habeas
relief: (1) that trial counsel failed to adequately
investigate and develop mitigating evidence Amended Petition
at 15-50, and (2) that his death sentence was based on
materially inaccurate evidence, Amended Petition at 51-62.
Respondent Lorie Davis asserts that Robertson's first
claim is unexhausted and procedurally barred by the Texas
abuse-of-the-writ doctrine, Answer (docket entry 50) at 2,
48-61, and that both claims lack merit. Answer at 61-71.
Robertson agrees that his first claim is unexhausted but
argues that it comes within the exception to the procedural
bar created in Martinez v. Ryan, 566 U.S. 1 (2012),
as applied to Texas in Trevino v. Thaler, 133 S.Ct.
1911 (2013). Amended Petition at 38-50; Reply (docket entry
51) at 4-7.

IV

Federal
habeas review of these claims is governed by 28 U.S.C. §
2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), setting forth
preliminary requirements that must be satisfied before
reaching the merits of a claim made in these proceedings.

A.
Exhaustion

Under
the AEDPA, a federal court may not grant habeas relief on any
claim that the state prisoner has not exhausted in the state
corrective process available to protect his rights.
See 28 U.S.C. § 2254(b)(1)(A); Harrington
v. Richter, 562 U.S. 86, 103 (2011). The federal court
may, however, deny relief on the merits notwithstanding any
failure to exhaust. See 28 U.S.C. § 2254(b)(2);
Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005),
cert. denied, 549 U.S. 838 (2006).

B.
State-Court Procedural Determinations

If the
state court denies the claim on state procedural grounds, a
federal court will not reach the merits of those claims if it
determines that the state law grounds are independent of the
federal claim and adequate to bar federal review. See
Sawyerv. Whitley, 505 U.S. 333, 338
(1992). The same rule would apply “if the petitioner
failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims
procedurally barred.” Coleman v. Thompson, 501
U.S. 722, 735 n.1 (1991), modified by Martinez v.
Ryan, 566 U.S. 1 (2012); Woodfox v. Cain, 609
F.3d 774, 793 (5th Cir. 2010).

If,
however, the state procedural determination is based on state
grounds that were inadequate to bar federal habeas review, or
if the habeas petitioner shows that an exception to the bar
applies, the federal court must resolve the claim without the
deference AEDPA otherwise requires. See Miller v.
Johnson, 200 F.3d 274, 281 n.4 (5th Cir.), cert.
denied, 531 U.S. 849 (2000); Nobles v. Johnson,
127 F.3d 409, 416 (5th Cir. 1997), cert. denied, 523
U.S. 1139 (1998); Mercadel v. Cain, 179 F.3d 271,
275 (5th Cir. 1999) (“the AEDPA deference scheme
outlined in 28 U.S.C. § 2254(d) does not apply” to
claims not adjudicated on the merits by the state court);
Woodfox, 609 F.3d at 794 (the AEDPA deferential
standard would not apply to a procedural decision of the
state court).

C.
State-Court Merits Determinations

If the
state court denies the claim on the merits, a federal court
may not grant relief unless it first determines that the
state court unreasonably adjudicated the claim, as defined in
§ 2254(d):

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.

Id.

In the
context of the § 2254(d) analysis, “adjudicated on
the merits” is a term of art referring to a state
court's disposition of a case on substantive rather than
procedural grounds. Green v. Johnson, 116 F.3d 1115,
1121 (5th Cir. 1997). This provision does not authorize
habeas relief, but restricts this court's power to grant
relief to state prisoners by barring the relitigation of
claims in federal court that were not unreasonably denied by
the state courts. The AEDPA limits, rather than expands, the
availability of habeas relief. See Fry v. Pliler,
551 U.S. 112, 119 (2007); Williams v. Taylor, 529
U.S. 362, 412 (2000). “By its terms § 2254(d) bars
relitigation of any claim ‘adjudicated on the
merits' in state court, subject only to the exceptions in
§§ 2254(d)(1) and (d)(2).” Richter,
562 U.S. at 98. “This is a ‘difficult to meet,
' and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court rulings
be given the benefit of the doubt.'” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (internal citations
omitted) (quoting Richter, 562 U.S. at 102, and
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)).

Under
the “contrary to” clause, a federal court is not
prohibited from granting federal habeas relief if the state
court either arrives at a conclusion contrary to that reached
by the United States Supreme Court on a question of law or
decides a case differently from the United States Supreme
Court on a set of materially indistinguishable facts. See
Williams, 529 U.S. at 412-13; Chambers v.
Johnson, 218 F.3d 360, 363 (5th Cir.), cert.
denied, 531 U.S. 1002 (2000). Under the
“unreasonable application” clause, a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from the Supreme
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case. Williams,
529 U.S. at 413. The Supreme Court has repeatedly reaffirmed
the high and difficult standard that must be met.

“‘[C]learly established Federal law'”
for purposes of § 2254(d)(1) includes only
“‘the holdings, as opposed to the dicta, of this
Court's decisions.'” And an “unreasonable
application of” those holdings must be
“‘objectively unreasonable, '” not
merely wrong; even “clear error” will not
suffice. Rather, “[a]s a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”

Federal
habeas relief is not available on a claim adjudicated on the
merits by the state court, unless the record before the state
court satisfies § 2254(d). “[E]vidence introduced
in federal court has no bearing on § 2254(d)(1) review.
If a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before
that state court.” Pinholster, 563 U.S. at
185. The evidence required under § 2254(d)(2) must show
that the state-court adjudication “resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
court proceeding.”

V

In his
first claim, Robertson complains that he was denied the
effective assistance of counsel in the punishment retrial
because his appointed counsel failed to conduct an adequate
mitigation investigation. Amended Petition at 15-50.
Specifically, Robertson asserts that his counsel
“unreasonably narrowed the scope of, and prematurely
ceased, the [mitigation] investigation despite red flags that
signaled further investigation needed to be done into
[Robertson's] mental state at the time of the offense,
into maternal and paternal genetic-and-environmental
influences, and into [Robertson's] early
childhood.” Amended Petition at 15.

Respondent
asserts that this claim was not presented to the state court
and is, therefore, unexhausted and now procedurally barred.
Answer at 48-52. Robertson agrees that this claim was not
presented to the state court, but argues that it comes within
the exception to the procedural bar created in
Martinez. Amended Petition at 38-50; Reply at 5-7.
Respondent argues that the claim does not fall within the
exception to the procedural bar created in Martinez
because it is insubstantial and state habeas counsel was not
ineffective. Answer at 52-61. In the alternative, Respondent
asserts that the claim lacks merit. Answer at 61-62.

A.
State Court Action

In the
post-conviction habeas application filed in state court,
Robertson presented one claim, that his “Sixth
Amendment right to counsel was violated when he received
ineffective assistance of counsel as a result of his legal
team's failure to adequately investigate and present
mitigation evidence as required by Wiggins v. Smith,
123 S.Ct. 2547 (2003) and Lewis v. Dretke, 355 F.3d
364 (5th Cir. 2003).” SHR (docket entry 28-27) at 8.
The state court described the claim:

In his sole ground for relief, Robertson complains trial
counsel Richard Franklin and Robbie McClung failed to
adequately investigate and present mitigation evidence,
specifically that they were ineffective for (a) failing to
follow mitigation expert Dr. Kelly Goodness' advice to
present certain themes at trial (Application at 25-27); (b)
failing to call psychologist Dr. Mark Vigen as a witness at
trial (Application at 27-29); (c) failing to depose
Robertson's friend Doris Jordi prior to trial and present
the deposition to the jury (Application at 29-30); and (d)
failing to obtain a copy of Robertson's 2001 clemency
petition from former counsel Randy Schaffer's file.
(Application at 30-31.) In support of his claims of
ineffectiveness Robertson cites Wiggins v. Smith,
539 U.S. 510, 536 (2003) and Lewis v. Dretke, 355
F.3d 364 (5th Cir. 2003).

SHR at
1150 (citing State Habeas Application at 6, 16-17). The state
habeas court conducted an evidentiary hearing on this claim
from January 23-26, 2012, Vol. 1-5, State Habeas
Reporter's Record (“SHRR”) (docket entry
28-22), and resolved disputed factual findings against
Robertson in denying relief.

While
the state habeas court concluded that the claim was
procedurally barred because it could have been but was not
presented in his direct appeal, the CCA did not adopt that
finding. Instead, the CCA adopted the state habeas
court's alternative findings that denied this claim on
its merits. See Ex parte Robertson, No. WR-30077-03,
2013 WL 135667 at *1.

The
adopted findings included details of the pretrial appointment
of “highly qualified death penalty counsel” for
the trial and appellate purposes that included trial
assistance “to formulate and execute an effective trial
strategy for mitigation.” SHR (docket entry 28-25) at
1155-57. The state court found that trial counsel put on a
comprehensive mitigation case that “covered
Robertson's life span and painted a picture of a person
who suffered as an abused, parentless child, who turned to
drugs as a result, and who ultimately thrived in the highly
structured environment of TDCJ.” SHR (docket entry
28-25) at 1186.

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.